Baltimore PD Hides Its Stingray Usage Under A Pen Register Order; Argues There's Really No Difference Between The Two

from the yeah-but-no-not-even-close dept

Fri, Jan 9th 2015 6:10pm — Tim Cushing

Another case involving Stingray devices has made its way into the federal court system, prompting the ACLU to join the battle on behalf of the defendant. A murder-for-hire sting conducted by the Baltimore police and the FBI involved the use of a Stingray device, but the paperwork used to justify the deployment says nothing about an IMSI catcher. The order obtained by the Baltimore PD is for a pen register/trap and trace device. [pdf link]

Uncharacteristically, the Baltimore PD disclosed its use of a Stingray device to locate a suspect's phone during court proceedings. Even more uncharacteristically, the government is fighting to keep the evidence from being suppressed, rather than opting to protect its means and methods at the expense of collected evidence.

How the evidence was obtained matters, even though the government's lawyers are arguing that it doesn't.

The government said the court order obtained by authorities, called a pen register, covers the technology because it refers to cellular tracking device and GPS location information.

But the ACLU argues that the state's statute for such pen register orders "makes no provision for, or even mention of, a 'cellular tracking device' " and is commonly understood to only include the "trapping" of call log information.

"In addition, there is absolutely no indication in the application or the order that the authorization will subject potentially unlimited numbers of innocent third parties to dragnet surveillance, none of whom will ever receive notice that their phones were tracked and that the search will intrude into constitutionally protected spaces," the ACLU wrote.

The government argues that no Fourth Amendment violations occurred, even if the court order said nothing about the device used to locate the phone. It asserts that everything was legit, and even if it wasn't, it was an honest mistake and it would have just found the suspect and his phone sooner or later -- perhaps even by using the method it actually requested. [pdf link]

[T]he Government argues that the search was not in violation of the Fourth Amendment for three reasons: (1) the search was authorized by the February 5, 2014, Order (the “Order”), which was a valid warrant; (2) even if the warrant was deficient, law enforcement acted in good faith reliance on it; and (3) even without a warrant, the evidence obtained would not be subject to exclusion because the inevitable discovery doctrine applies.

Wrong, wrong and wrong, according to the defendant's (Robert Harrison) counsel.

The Order was not a valid warrant for at least three reasons. First, the Application in support of the Order was purposefully misleading. The Government crafted the Application as if it were a routine application for a pen register or a trap and trace device, citing the applicable Maryland statutory authorization. It did not mention the term “cell site simulator,” nor did it describe the novel technology in a manner that the judge would understand its intrusiveness on the privacy rights of Harrison or others. Second, although the Government now seeks to treat the Order as a warrant, it failed to comply with the statutory temporal requirements for the execution of warrants, which impacts probable cause. Third, the Order fails the particularity requirement because it specified that it was authorizing a search of only the target phone, but, instead, the cell site simulator searched the phones of infinite third parties in the vicinity. As such, if it was a warrant, it was an illegal general warrant.

The "good faith" exception -- the benefit of a doubt the government frequently extends to itself -- is also addressed.

Further, the Government cannot rely on the good faith exception or the inevitable discovery doctrine. The good faith exception cannot apply here because the purported warrant was facially invalid, and the affiant knowingly or recklessly misled the magistrate with material omissions concerning the cell site simulator. The inevitable discovery doctrine likewise does not apply because the Government’s argument is predicated on an alternative plan that is latent with speculation and conjecture, instead of historically verifiable facts.

Going beyond this, the government attempts to claim the Pen Register order is no different than an actual search warrant -- something it didn't have in its possession when it used the cell site spoofer to "search" Harrison's premises (as well as anyone else's within range) for the cell phone. The filing points out that the statute under which the order was obtained doesn't provide for the issuance of warrants. Even if the government wanted to treat the order like a warrant, it was missing all sorts of specifics crucial to search warrants -- like the particularity of the search, time limitations and probable cause findings.

Not only that, but by obtaining a Pen Register order rather than a search warrant, the government deliberately hid its methods from the courts. The particulars of the technology being deployed were never presented to the magistrate. All of this adds up to one thing: even if the government wants to pretend the order was a warrant, at the very best, it was in possession of a general warrant -- the sort of thing that the Fourth Amendment is in place to safeguard against.

The government also blew past temporal limits normally found in warrants. In its arguments, it wants to have it both ways -- the leniency of the 60-day window provided for Pen Register orders and the powers granted to those in possession of actual search warrants, which are only good for 15 days after issuance. The deployment of the Stingray didn't occur until 50 days after the Pen Register order was obtained.

Addtionally, the phone sought by the FBI and Baltimore PD was no longer in possession of the sting target by the time it went "searching" for it. Within a day of obtaining the Pen Register order, the phone was answered by an unknown male, who told the informant that the suspect (Smith) would call him back on his personal phone. Further records submitted as evidence note that every call between Smith and informants occurred on personal phones, rather than the phone the government was looking for. As the filing points out, had the government sought a warrant to locate this phone, it would have been unable to provide probable cause findings. As things stood nearly a month after the Pen Register order was obtained, the government didn't know much about who actually had the phone, much less whether the phone was still being used as part of the murder-for-hire plot.

By covering up its use of a Stingray device, the government availed itself of the less stringent standards inherent to Pen Register orders. But when it comes to defending itself against complaints of Fourth Amendment violations, the government attempts to portray the order as indistinguishable from a search warrant -- except for all the stuff it's supposed to do on its end to ensure rights aren't violated.

Pen Regester Order Obtained for Stingray Use (PDF)Pen Regester Order Obtained for Stingray Use (Text)

Stingray Maryland 20141230 (PDF)Stingray Maryland 20141230 (Text)

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: 4th amendment, baltimore, imsi catcher, pen register, police, stingray, warrant

35 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 9 Jan 2015 @ 6:50pm

The law enforcement agencies have abused their power so much and so often that it no longer seems absolutely insane to defend the worst kinds of criminals.
[ link to this | view in thread ]
That One Guy (profile), 9 Jan 2015 @ 6:56pm

Re:
That's okay, you don't have to defend the accused, just their rights. It's perfectly fine, understandable even, if you can't stand a person or group, yet still want them to get fair treatment under the law.
[ link to this | view in thread ]
Anonymous Coward, 9 Jan 2015 @ 7:02pm

More and more law enforcement and the government is law unto itself, no longer shackled by the laws the average citizen is expected to follow. From police right on up to the top, corruption, illegality, and changing the meaning of words all follow a pattern of willingly violating the guarantees of citizenship.

It appears it is ok to have laws as long as no one but the peons have to follow it. This is the among the reasons that a majority of citizens no longer believe the government has the consent to govern.
[ link to this | view in thread ]
Anonymous Coward, 9 Jan 2015 @ 7:13pm

Turn about
If all of this is perfectly fine for law enforcement, lets use the same thing to do an audit. We need to verify that they aren't using this in other unauthorized manners such as checking on their girl friend. Nothing to hide and all applies each way right?
[ link to this | view in thread ]
Anonymous Coward, 9 Jan 2015 @ 9:14pm

I don't see what the problem is. The police requested a *, and the court granted them a *.
[ link to this | view in thread ]
RR, 9 Jan 2015 @ 10:17pm

Liars
I don't understand how someone who lies to the courts can continue to have a job in law enforcement. How can he ever present evidence or testify without being called out as a documented willful liar? Why isn't his career over?
[ link to this | view in thread ]
David, 9 Jan 2015 @ 11:01pm

Re: Liars
Do you also not understand how someone who commits a foul can continue to have a job in a sports team?

Because that's the spirit with which they are gaming the system.
[ link to this | view in thread ]
Anonymous Coward, 9 Jan 2015 @ 11:21pm

An interesting article. I enjoyed the legal analysis.
[ link to this | view in thread ]
David, 10 Jan 2015 @ 12:43am

Re:
You don't defend the criminals. The criminals, for better or worse, provide the opportunity to defend your own rights which are trampled upon along with everybody else's.

There is a tradeoff between the invasiveness of law enforcement in everybody's life, and the ability to find criminals, typically of the petty kind. And there are checks and procedures and judicial oversight when larger crimes are involved.

Those checks and procedures are in place to secure that the tradeoffs the lawmakers made between everybody's rights and the ability to do prosecution are kept in line.

You are not fighting for the criminals and their rights. You are fighting for your own rights.

Law enforcement does not get to decide which ends justify which means. Because once you go down that road, you'll end up with police executing people on the street for things they don't like.

It's a smaller price to pay to let some criminals go free than effectively put the whole populace in a jail of the law enforcement's design and choosing.
[ link to this | view in thread ]
McDoogle, 10 Jan 2015 @ 3:46am

Thanks Time. Excellent article.
[ link to this | view in thread ]
Anonymous Coward, 10 Jan 2015 @ 4:26am

Re:
Remember, the aging suburbanites view LEOs as incorruptible models of purity. Which does not help things.
[ link to this | view in thread ]
art guerrilla (profile), 10 Jan 2015 @ 5:10am

Re: Re:
not only that, the aclu, etc purposefully PICK these extreme cases TO ENSURE there is a bright line drawn: IF they can get rights secured for the WORST of the accused, then EVERYONE is made more secure...
[ link to this | view in thread ]
Bamboo Harvester (profile), 10 Jan 2015 @ 5:33am

fair treatment under the law
Yes and no - you defend "their" rights because you want the same standard applied if you (or anyone in a group you "like") comes before a Judge.

And while I'd personally like to see every feral gang-banger summarily executed, if we let the Courts get away with different standards for one group, you can be sure they'll claim EVERY defendant is "unique" and make up rules on the fly.

As a side example, look at that idiot law passed that Nazis can't collect SS (real Nazis, not invoking Godwin here). Sounds good, right?

But if they can exclude people from one group, it won't be long before they exclude other groups based on the precedence of the No-Nazi law. Even when it's overturned (since they basically biased the system based on political affiliation) that "precedent" remains.
[ link to this | view in thread ]
Bamboo Harvester (profile), 10 Jan 2015 @ 5:39am

Re: Liars
Ask any criminal lawyer, prosecution or defense, who the biggest liars in the courtroom are.

They'll start by telling you EVERYBODY lies in court.

Then they'll answer your question: Cops. Hands down, Cops lie the most on the stand and in their paperwork.
[ link to this | view in thread ]
nasch (profile), 10 Jan 2015 @ 7:43am

Re: fair treatment under the law
Yes and no - you defend "their" rights because you want the same standard applied if you (or anyone in a group you "like") comes before a Judge.

No, I defend their rights because I believe they deserve them. I believe someone deserves things like a fair trial because he's a person, not because he's like me, even if he's a terrible person who's committed a heinous crime.
[ link to this | view in thread ]
nasch (profile), 10 Jan 2015 @ 7:46am

Inevitable
even without a warrant, the evidence obtained would not be subject to exclusion because the inevitable discovery doctrine applies.

That sounds like an extremely dangerous doctrine ripe for abuse.
[ link to this | view in thread ]
MondoGordo (profile), 10 Jan 2015 @ 9:04am

Re: Re: Liars
the 2 things are not parallel and should never be treated that way.

ianal but the difference is that lying in court is a criminal offence called ~perjury~... requiring a separate criminal proceeding to resolve.
a foul on the ball field is a rules violation that is administratively punished under the same rules during the same "proceeding" (the legal parallel is contempt of court).

the referee (who hands out fouls) in sports is theoretically impartial; the district attorney (who pursues indictments) isn't and has a vested interest in not calling "foul" on the law enforcement "players".

it's like the coach for the home team has taken over the job of referee.
we wouldn't accept that in sports why do we accept it in court?
[ link to this | view in thread ]
RR, 10 Jan 2015 @ 11:20am

Re: Re: Re: Liars
I'm thinking of the defense attorneys. In every future trial how can he not get called out as someone who has previously lied to the courts? You can claim all the other police will protect him, but don't try to tell me the defense will too.

What's the real situation then?
[ link to this | view in thread ]
Anonymous Coward, 11 Jan 2015 @ 5:38am

Re: Re: Liars
The difference is that the sports team can't wreck your life by lying as much as an officer of the law.
[ link to this | view in thread ]
Groaker (profile), 11 Jan 2015 @ 10:10am

Re: Re:
Some of the aging view LEOs as incorruptible models of purity. So do people of every other age group. Seeing this from the young is particularly irksome.
[ link to this | view in thread ]
Groaker (profile), 11 Jan 2015 @ 10:13am

Re: Re: Liars
Everybody includes each and every person in the courtroom with the possible exception of silent observers. Judges as well as prospective and seated jurors lie as well.
[ link to this | view in thread ]
Groaker (profile), 11 Jan 2015 @ 10:15am

Re: Inevitable
That is the institutional part of lying -- that the Fourth doesn't mean what it says it means.
[ link to this | view in thread ]
Anonymous Coward, 11 Jan 2015 @ 11:58am

I wonder what America would be like if most of the people they trust to have assault weapons and apc's did not think they were above the laws they are charged with enforcing
[ link to this | view in thread ]
Anonymous Coward, 11 Jan 2015 @ 12:04pm

Re:
when your given tanks, assault rifles, military grade gear to enforce laws upon a civilian population you tend to stop caring about what your not supposed to do because you have weapons to back up doing whatever the hell you want to do.

Can you imagine if people got their way and disarmed americans everywhere. If the police knew that no citizen was legally allowed to have a gun to defend themselves can you imagine how much worse the abuses would become
[ link to this | view in thread ]
Anonymous Coward, 11 Jan 2015 @ 12:04pm

Re:
when your given tanks, assault rifles, military grade gear to enforce laws upon a civilian population you tend to stop caring about what your not supposed to do because you have weapons to back up doing whatever the hell you want to do.

Can you imagine if people got their way and disarmed americans everywhere. If the police knew that no citizen was legally allowed to have a gun to defend themselves can you imagine how much worse the abuses would become
[ link to this | view in thread ]
Anonymous Coward, 11 Jan 2015 @ 12:06pm

Re: Re:
sorry apparently it did a double post, any chance a moderator could remove one of these
[ link to this | view in thread ]
That One Guy (profile), 11 Jan 2015 @ 4:53pm

Re: Re:
If the police knew that no citizen was legally allowed to have a gun to defend themselves

You say this as though it isn't already true. People may still have their guns, but it is still incredibly illegal(or at least not allowed) to use them against a cop, 'self-defense' or not, due to the system automatically treating police as in the right.

If the system is heavily slanted in favor of police(and it is), to the point that they can kill someone on camera and never go to court for it(and they have), then 'self-defense' ceases to be an acceptable excuse when used against a cop, because clearly those shining beacons of justice would never place a person into a situation where they felt their life was unjustly in danger, and therefor feel that they needed to defend it.

As such, use of force against a cop cannot be self-defense, and therefor justified, according to the current system, but instead can only ever be assault, attempted murder, or murder, and both sides know it. Cops know only the suicidal would ever try and defend themselves, and the public knows that no matter what a cop does, it is, for all intents and purposes, illegal for them to defend themselves.

Why else do you think they feel so confident in their actions, they know the system has no interest in holding them accountable for their actions, and the citizens aren't allowed to do so.
[ link to this | view in thread ]
1st Dread Pirate Roberts (profile), 11 Jan 2015 @ 7:40pm

Fruit of the Poison Tree
This is a stinky case of fruit of the poison tree. Regardless of whether specific officers felt they were acting in good faith, the warrant execution was illegal, and the Stingray findings are fruit of the poison tree.
[ link to this | view in thread ]
John Fenderson (profile), 12 Jan 2015 @ 7:49am

Re: fair treatment under the law
"you defend "their" rights because you want the same standard applied if you (or anyone in a group you "like") comes before a Judge."

No.

I defend their rights because doing so is essential for the health of our society and nation. Whether or not I like (or even know) them is irrelevant.
[ link to this | view in thread ]
John Fenderson (profile), 12 Jan 2015 @ 7:51am

Re: Re:
"You are not fighting for the criminals and their rights. You are fighting for your own rights."

True, in a sense. That sense being that there is no difference between the rights of accused criminals and your rights.
[ link to this | view in thread ]
Dirkmaster (profile), 12 Jan 2015 @ 9:17am

Re: Re:
No, I don't. What gives you the right to speak for me?

Aging Suburbanite Dirkmaster
[ link to this | view in thread ]
John Fenderson (profile), 12 Jan 2015 @ 10:08am

Re: Re: Re:
Me either.

And my personal experience doesn't even back up the assertion. I've found that in suburbia, it's the youth who are more likely to just accept LEOs as "models of purity" than their elders (although neither do much of that).
[ link to this | view in thread ]
John Fenderson (profile), 12 Jan 2015 @ 10:10am

Re: Re:
"If the police knew that no citizen was legally allowed to have a gun to defend themselves can you imagine how much worse the abuses would become"

I don't think it would make the slightest bit of difference in that.
[ link to this | view in thread ]
John Fenderson (profile), 12 Jan 2015 @ 10:11am

Re: Liars
"Why isn't his career over?"

The police are the most egregious liars that appear in court. If they ended this guy's career over it, they'd have to end the career of the majority of cops in the nation as well. I'm not sure that would be a bad thing, but it would be a very hard sell.
[ link to this | view in thread ]
ROGS, 4 Apr 2020 @ 11:05am

re: StingRays
I am still looking for anyone who can assist me in discovery of Stingray devices and similar(Hailstorm, etc.) that were in use in Minnesota by the BCA, and FBI, and it's affiliated contractors between 2009-13.

During that time, and the many events that occurred, like Ferguson, Baltimore, etc., my electronic devices routinely routed to various Fusion Centers (Bloomington), most remarkably the Tennessee center during the protests.

I used Wireshark, and CommView for Wifi, as well as the excellent free INNSIDer in that era, and watched whole neighborhoods wireless signals go flat as squad cars circled my block.
- NoT tHE FBI SUrveillance Van and TAO2* were common trolling APs in that era.
How many old ladies died of heart attacks, or cats died, stuck in trees; or children were not saved by the great "child savers" during that time because they couldn't call out on their cell phones will never be known.

I have screen caps if anyone is interested.
[ link to this | view in thread ]